From the dictation test to the character test

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26 July 2007

The federal government's treatment of Mohamed Haneef recalls the infamous case of Egon Kisch, writes GLENN NICHOLLS

THE DECISION by the immigration minister, Kevin Andrews, to cancel Dr Mohamed Haneef’s visa has potentially condemned him to years in immigration detention followed by deportation - even if he is acquitted of the charges against him. But there are telling precedents in Australian history for questioning the wisdom of Andrews’ decision.

In 1934 Robert Menzies, then attorney-general, tried to deport the Czech communist writer Egon Kisch. Menzies had tried to keep Kisch out of the country after he received secret intelligence from British agents that Kisch had been denied entry to Britain. Kisch dramatically made landfall in Australia by leaping from his ship onto the Melbourne docks, breaking his leg, and his supporters managed to get his case before the local courts.

Menzies told parliament that the cause Kisch championed involved “force and bloodshed” but in court the Commonwealth failed to adduce any evidence about Kisch’s alleged subversive activities. Instead it turned to an inscrutable instrument in the Immigration Act to declare Kisch a prohibited immigrant, the dictation test. Officials made sure that Kisch failed the test by dictating a passage in Scottish Gaelic.

Two things resulted from this brazen tactic. First, Kisch appealed successfully to the High Court, got released on bail and toured the country delivering lectures to large crowds until he departed Australia after four months and received compensatory costs from the government. Afterwards, in a move similar to that proposed by the current attorney-general, Philip Ruddock, the government tightened bail regulations. It introduced a new law, the so-called Lex Kisch, whereby someone charged as a prohibited immigrant was ineligible for bail.

The case was also the beginning of the end for the dictation test. It was not abolished until 1958 but in the Kisch case the test was exposed as a heavy-handed instrument which the government could use when it was unable to establish other lawful grounds for its action.

In 1953, Harold Holt, immigration minister under Menzies, came to the view that the Immigration Act should be used only to prosecute immigration offences and that political matters should be dealt with under the Crimes Act. He presented reform proposals in February 1953, and to its credit, the Menzies cabinet supported him, despite its fervent anti-communism and ASIO’s protestations.

There is a need for a similar stance by the government today. Andrews has sweeping powers to cause individuals to be detained and deported, but these should not be used to circumvent court decisions, such as the decision to grant bail to Dr Haneef.

The use of the minister’s visa cancellation powers in the Migration Act must be reviewed. The character test in the Act empowers the minister to cancel visas in a range of circumstances. As immigration minister Philip Ruddock used the test aggressively in the early 2000s to deport people convicted of crimes in Australia and who had served one year’s imprisonment or more, notwithstanding that they had grown up and lived virtually their whole lives in Australia and were permanent residents. 233 permanent residents were deported on these grounds between 2002-03 and 2004-05. The visa cancellation power has come to supersede the specific criminal deportation power in the Migration Act. Previously individuals could not be deported after they had lived more than ten years in Australia.

Andrews has now used the character test to cancel Dr Haneef’s visa in advance of any criminal conviction and in circumstances where the government says that it has secret information about Haneef which has not been produced to his lawyers or to the Court. It is time to reform the scope of the character test and the minister’s visa cancellation powers. We could start by returning to the spirit of Holt’s important, unheralded reforms in 1953.

Glenn Nicholls is a researcher with the Institute for Social Research at Swinburne University of Technology and author of Deported: A History of Forced Departures from Australia, to be published by UNSW Press in October.

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